Buried in the Bureau of Prisons

Imagine a country in which prisoners can be denied visits, and even telephone calls, with family members for years at a time. Imagine a country in which government officials can prevent prisoners from telling news reporters about mistreatment or abuse. Imagine a country in which prisoners who are foreign citizens can be denied their right, guaranteed by international treaty, to meet with consular officials from their nation of origin. Unfortunately, that country is not some totalitarian state in the 1950s, but the United States in 2010.

The government has so far been operating these units without regulatory authority, but in April of this year, it belatedly published proposed rules that would authorize their operation. These rules make clear just what the government has in mind: a regime even more draconian than currently exists in the CMUs. Prisoners would be allowed only one 15-minute telephone call per month, with "immediate family members only" (defined to include only parents, spouses, children and siblings); one one-hour noncontact visit per month, with immediate family members; and one letter per week, limited to three pieces of paper, to and from a single recipient, "at the discretion of the Warden."

When the CMUs were first established, the government justified them as necessary to monitor the communications of convicted or suspected terrorists. But in a classic case of mission creep, the new regulations provide that a prisoner can be transferred to a CMU if there is "any … evidence of a potential threat to the safe, secure, and orderly operation of prison facilities, or protection of the public, as a result of the inmate's communication with persons in the community." Given that most people in BOP custody are already accused or convicted of criminal activity, this standard imposes no meaningful limits; virtually any of the more than 200,000 federal prisoners could be sent to a CMU. In fact the CMUs have already been used to house prisoners who have not been convicted, or even accused, of terrorist activity. And because the CMU transfer decision is made solely by the Bureau of Prisons, with no external review or oversight, prisoners lack a meaningful way to challenge their placement.

These proposed rules represent an unprecedented attack on First Amendment rights, both of prisoners and of those on the outside — family, friends, journalists, clergy, and others — who want to communicate with them. A CMU prisoner who was raised by his aunt or grandmother will not be allowed to receive visits from her, or even talk to her by telephone. A reporter who wants to interview a prisoner alleging mistreatment or abuse won't be allowed to do so. Never in modern U.S. history have prison officials been given the power to create a class of prisoners who are denied virtually all communication with the outside world.

The proposed rules also violate U.S. treaty obligations. Under the Vienna Convention on Consular Relations (PDF), ratified by the United States in 1969, consular officers have the right to visit their nationals who are in prison or detention in a foreign country, for the purpose of arranging legal representation or providing other assistance. Although more than one-quarter of the bureau's prisoners are foreign nationals, the proposed rules make no provision for the consular visits required by the treaty. Past U.S. violations of the Vienna Convention have resulted in judgments against the United States by the International Court of Justice; the proposed rules make it all but certain that more treaty violations will occur in the future.

The government predictably defends the CMUs as necessary for security. But prison officials already have the authority to control and limit prisoners' correspondence, telephone calls, and visits, and to monitor those communications to detect and prevent criminal activity. For example, prison staff must approve a prisoner's visitor lists; they may conduct background checks for that purpose, and may disapprove any visitor. Visiting areas may be monitored. Prison officials may deny placement of a given telephone number on a prisoner's telephone list if they determine that there is a threat to security. Telephone calls are also monitored. Prison officials have the authority to open and read all non-legal prisoner mail. The proposed CMU rules don't explain why these existing security measures are insufficient. And they certainly don't explain how security is meaningfully advanced by preventing a prisoner from calling his grandmother.

The Bureau of Prisons is accepting public comments on the proposed rules through June 7. On Tuesday, the ACLU submitted comments calling for the immediate closure of CMUs. See the instructions for filing comments, and submit your own here.